Recent developments surrounding the National Labor Relations Board have cast a pall over this federal agency. On Tuesday, President Obama announced three nominations to the NLRB in an attempt to rectify the situation. The President renominated current Chairman Mark Gaston Pearce and nominated two management-side attorneys, Philip A. Miscimarra and Harry I. Johnson III, as well.
In January, the Court of Appeals for the D.C. Circuit Court of Appeals decided the controversial Noel Canning v. NLRB case, which we blogged about here. The court unanimously held that three recess appointments to the Board by President Obama were unconstitutional. The invalidation of three members of the five-person panel meant that the Board lacked a quorum and could not conduct official business. This has left labor-management relations in a state of disarray as employers have responded to Noel Canning by challenging decisions made by the Board. The NLRB has indicated it will appeal Noel Canning to the Supreme Court. Adding more fuel to the fire, in March, Congressman Phil Roe (R-Tenn.) introduced the Preventing Greater Uncertainty in Labor-Management Relations Act. The proposed legislation, while unlikely to pass the Democratic-controlled Senate, seeks to bar the Board from taking any official action until a quorum is reached or until the Supreme Court overturns Noel Canning.
President Obama’s nominations should silence—or at least quell—the rising uproar. The three nominees would fill the five-person Board. Mr. Pearce has served on the Board since 2010 and replaced Wilma Liebman as Chairman in 2011. His term was set to expire in August. In Mr. Miscimarra (a Seyfarth Shaw alumnus) and Mr. Johnson, the president has proposed two Republican members that would return the Board to its traditional balance of power: three members of the President’s party and two from the opposition. Both men are highly respected management-side attorneys that have made names for themselves in private practice. While nothing in this political environment is certain, the quality of the nominees suggests that they should garner the support of Republican Senators. Of course, political pundits often misread the tea leaves. Employers should closely monitor the situation as the nominees move through the confirmation process.
This news potentially has lasting and significant implications for employers. Confirmation of the nominees would dispel any challenges to the legitimacy of Board decisions going forward. However, the legal effect of decisions and other official actions taken without a quorum remains in limbo. The Supreme Court could resolve that issue as well. The composition of the prospective Board also suggests that additional pro-union decisions will be made, which could include confirming the reasoning of Board case law that currently stands in doubt after Noel Canning. The effect of two strong management-side members on the Board, however, would be positive for employers and may be the best they can hope for in the short term.